Ngao Tang Yau Lin v. Ngao Kai Suen and Another

CACV000046/1984

Headnote

Family law - financial provision - s.4 of the Matrimonial Proceedings and Property Ordinance (Cap. 192)

Upon the true construction of s.4 of the Ordinance, the court has jurisdiction, in appropriate cases, to dismiss an application for periodical payments once and for all whether or not the applicant consents.

Minton v. Minton [1979] A.C. 593, applied. Dipper v. Dipper [1981] Fam. 31, (C.A.) not followed.

Decision of District Court affirmed.

BETWEEN

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Coram: Cons and Fuad, JJ.A., and Kempster, J.

Dates of hearing: 30th & 31st May 1984

Date of judgment: 14th June 1984

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JUDGMENT

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Fuad, J.A.:

1. This is an appeal by a wife against part of an order made by a District Judge on the 30th December 1983 in relation to her application for ancillary relief following a decree nisi granted in her favour.

2. The parties, who are Hong Kong residents and domiciled in Hong Kong, were married in the U.S.A. in May 1978.  A few months later they returned to Hong Kong and set up home in a flat belonging to the husband. After two miscarriages, a daughter was born to them on the 22nd September 1981.

3. There is a dispute as to how long they lived together as husband and wife and what caused the husband to leave the matrimonial home but on the 9th November 1982 the wife filed a petition for divorce on the grounds that the marriage had broken down irretrievably. The wife sought to establish the irretrievable breakdown by alleging that her husband had committed adultery with a named woman and that she found it intolerable to live with him.

4. The husband indicated on the appropriate form of acknowledgment of service that he did not intend to defend the petition and the decree nisi was granted on the 19th April 1983. On that day the learned Judge declared that he was not satisfied as to the arrangements for the child of the family and since he has yet to declare the contrary, no decree absolute has been pronounced.

5. By her petition the only ancillary relief the wife claimed was for maintenance at the rate of $12,158 per month for herself and her daughter. This part of her petition was later, we are told, amended by leave to include other forms of ancillary relief, and by the time the matter came on for hearing, by her affirmation filed on the 1st August 1983, she was claiming -

6. The hearing of the wife's application began on the 7th December 1983 and lasted three days, only the wife and the husband giving evidence, and the Judge reserved his judgment. The order drawn up to reflect, the oral judgment he gave on the 30th December 1983 was in the following terms -

7. The parties appeared before the same judge on the 23rd February 1984 on an. application for review (for which provision is made by s.53 of the District Court Ordinance, Cap 336). The application was filed by the wife, and she was asking for an order for periodical payments in respect of herself notwithstanding the previous order dismissing her claim. She had earlier been represented by a solicitor, and on this occasion Mrs. Yew appeared for her as she did before us. Miss Leong was the husband's counsel throughout the proceedings before the District Court, and on this appeal.

8. On the review Miss Leong argued against any adjustment of the Judge's original order and also submitted, on a number of English authorities, that the court had the necessary jurisdiction to dismiss an application for periodical payments once and for all whether or not the applicant consented.

9. In his "Ruling" dated the 22nd February 1984 the Judge discussed the authorities cited to him and held on the authority of Dunford v. Dunford⁽¹⁾ that a claim for periodical payments could be finally dismissed without the applicant's consent, declining to follow the later decision of the English Court of Appeal in Dipper v. Dipper⁽²⁾ to the contrary effect. The Judge decided not to vary his original order and commented on. the general desirability of applying the "clean break" principle in these terms -

"I believe that in many instances it is to a spouse's benefit to have a lump sum award or a transfer of property rather than periodical payments and indeed the award I made in the instant case may well have been substantially different, had I been persuaded or even advised by Counsel before I made that initial decision that a wife's claim for periodical payments could not be dismissed. Indeed, if the Court is faced with the situation where a spouse does not consent to dismissal of claim then different forms of order must tie contemplated and quite conceivably there can be detriment to the spouse's claim for a lump sum rather than or in addition to periodical payments and indeed the beneficial aspect of the clean-break principle may in such cases be totally undermined."

10. On the 13th March 1984 the learned Judge gave leave to appeal which seems to be required under s.63 of the District Court Ordinance.

11. The Notice of Appeal subsequently filed on behalf of the wife is long and detailed and I will only summarise the grounds as shortly as I can. It is first said that the Judge had no jurisdiction to dismiss Petitioner's claim for periodical payments without her consent, and then, whether or not jurisdiction existed, that the Judge should have made a substantive order in her favour on the grounds that the Judge had failed to have due regard to the provisions of s.7(1) of the Matrimonial Proceedings and Property Ordinance, Cap.192 ("the Ordinance") in a number of specific respects. It is also averred that the Judge's decision was wrong on the facts and against the weight of the evidence on several grounds. In relation to the lump sum payment, the Notice states that it was inadequate by reason of the grounds set out.

12. There is no appeal as regards the property disposition or the periodical payments ordered for the child.  Nor is there a Respondent's Notice seeking to support the Judge's decision on other grounds, or raising a cross-appeal.

13. Leaving aside the important issue about jurisdiction for the moment, on the evidence led before the Judge he had an unenviable task indeed. It is pity that the evidence relating to the financial state of each party was presented to the Court in such an imperfect way. I intend no criticism of those advising and representing the parties, but properly prepared accounts would have given the Judge the assistance he undoubtedly needed, to unravel their complicated affairs. The parties may have lacked the resources to enable them to engage qualified accountants.

14. However that may be, we have been greatly assisted by Mrs. Yew and Miss Leong, who over two days took us patiently through the figures in an effort to enlighten us as to the true position.

15. The wife has effectively been given the use of the only piece of unencumbered property the husband owned - the flat in Blue Pool Road, as a roof over the heads of herself and her little girl, with an order that she shall receive $100,000 to pay the amount that will be due to the brown in 1986 as a premium for the renewal of the lease. This flat had been bought by her husband with no contribution from her and placed into their joint names. A debt of $60,000 she acknowledged to be due to her husband has been written off. And she will receive la further $35,000 when the order becomes effective. In respect of her child, she will receive $2,500 per month. and the Judge found her to be capable of earning $4-6,000 per month, although she said she was, at present, only earning $2,000 per month.

16. The wife's savings accounts reveal a mystery which was not explained. She was able to pay quite considerable sums of money into her accounts which were well above her apparent means.  And we have no way of knowing the true value of her 50,000 one dollar shares in one of her companies (Yan Hing).

17. As regards the husband's means, one can only say that on the figures the Judge was entitled to accept, he has liabilities running into millions of dollars, quite apart from his legitimate living expenses. The monthly interest on his bank loans far exceed his income. And yet, there is a mystery here, too, for he seems to be able to live comfortably and in considerable style despite his apparently desperate financial situation.

18. Early in the hearing I was inclined to the view that it was perhaps arguable that the Judge should have made a nominal order for periodical payments in favour of the wife because the husband had a number of irons in the fire, so to speak, and he might in the future have been able to pay something over to his wife.  In listing the matters to which he had regard in making his order, the Judge did not expressly refer to that part of paragraph (a) of subsection (1) of s.7 of the Ordinance which I have emphasized below -

However, Miss Leong convinced me that once the husband's evidence was accepted, it was quite unrealistic to suppose far one moment that his financial position was likely to so improve in the "forseeable future" so as to justify leaving the matter open by making a nominal order.

19. Taking all the circumstances into account in this extremely difficult case, I am not persuaded that the Judge’s discretion (assuming he had jurisdiction to dismiss the wife's application for periodical payments) in making the order he did, should be interfered with.

20. I now turn to consider the jurisdiction point which has not previously arisen in Hong Kong, and is of great importance. I will take the cases in the English Court of Appeal which seem to me to be relevant to this issue, in outline, and in chronological order. On the 13th February, 1976, in Carpenter v. Carpenter⁽³⁾ the Court of Appeal (Stamp, Ormrod L.JJ. and Sir John Pennycuick) had before it the question whether or not an application for periodical payments can be dismissed without the applicant's consent. Ormrod L.J. expressed the view that there was no authority for the proposition (contrary to what was said in Rayden on Divorce (12th Edition) p.789) that an application could be dismissed in such circumstances. Stamp L.J. and Sir John Pennycuick are reported simply to have concurred.

21. Next came Dunford v. Dunford⁽¹⁾.  The Court comprised Lord Denning M.R. and Eveleigh L.J. and the decision was given on the 28th June 1979. In order to achieve a "clean break", the court varied the order made by the trial Judge and struck out the requirement that that the husband should pay the wife maintenance at 5p per annum.

22. The question came before the Court of Appeal again on the 14th December 1979 in Carter v. Carter⁽⁴⁾ when the members of the Court were Orr, Ormrod and Goff L.JJ. The Court was not aware of Dunford v. Dunford⁽¹⁾ because The Times was not being published at the time of the decision.  Ormrod L.J. said that the English Act gave the right to apply for periodical payments on the granting of a decree or at any time thereafter and that right could not be taken away unless the party concerned consented.

23. In L. v. L.⁽⁵⁾ Balcombe J. preferred the reasoning in Dunford v. Dunford⁽¹⁾ to that in Carter v. Carter⁽⁴⁾ and followed the earlier case.

24. So far as the U.K. is concerned, the confusing state of the law revealed by these cases must be regarded as settled (unless and until the question is considered by the: House of Lords) by the decision of the Court of Appeal (Roskill, Ormrod and Cumming-Bruce L.JJ.) given on the 5th March 1980 in Dipper v. Dipper⁽²⁾. There the wife appealed against the dismissal of her claim for periodical payments, because she had not consented to it.  Roskill L.J. (as he then was) referred to the relevant provisions of the Matrimonial Causes Act 1973 and said that they showed that either party to a marriage at the time of the granting of a decree, or at any time thereafter, was at liberty to apply for periodical payments subject only to the restraints expressly imposed by the statute (for example under s.28(3), after a re-marriage). He found nothing in the express, language of the Act to suggest that a Court had power to dismiss such an application on its own volition and without the of the applicant, so as to bar any subsequent application.

25. Roskill L.J. then went on to consider, whether "notwithstanding the impression that the Act leaves on one's mind, there is authority, which compels a different result”. He discussed Carpenter v. Carpenter⁽³⁾ and of it he said "That decision is, in my view, binding upon this Court unless it has subsequently been held by the House of Lords to be wrong". He then went on to consider the decision of the House of Lords in Minton v. Minton⁽⁶⁾ upon which the Judge below had sought to rely as justification for his order dismissing the claim for periodical payments. I note in passing that Minton v. Minton was also relied upon by Lord Denning in Dunford v. Dunford⁽¹⁾ and by Balcombe J. in L. v. L.⁽⁵⁾. Roskill L.J. saw Minton v. Minton as "a very different case on the facts and as a case which raised the issue (not present here) "whether when there had been a freely negotiated agreement between the parties to settle their financial arrangements once and for all, and that agreement had been embodied in an order of the Court, there was any power in the Court thereafter to allow one of the parties to go behind the agreement and obtain a fresh order." He analysed the speech of Lord Scarman and set out the headnote as it appears at p.593 of the report. He then went on to say, at p.728, -

"With great respect, the beginning of that part of the headnote in my judgment does not accurately reflect what Lord Scarman said. I think Minton v. Minton decides that, where by consent an application has been dismissed by an order of the court, there is no power in the court to entertain a second or subsequent application under s.23(1) of the Act.  That section gives no such power to the court, but Minton v. Minton does not, in my view, decide that where a wife applies for periodical payments and the court is of the opinion that, at the time that application is heard, no order should be made in her favour, the court is thereupon empowered of its own volition to dismiss her application so as to preclude her from thereafter making a subsequent application in the event of a change of circumstances. Reading the arguments of counsel in that case, I do not see any suggestion that such an argument was advanced before their Lordships. In my view to accept that submission would deprive the wife of a statutory right given her by Parliament under s.23(1) to apply' at any time thereafter', that is, at any time after the decree of divorce, or nullity or of judicial separation.  It would lead to the court accepting an argument for which, for my part, I cannot find any authorisation in the statutes.

It is perhaps wortheadding that, if the suggested power existed to dismiss applications for periodical payments without the wife's consent, Minton v. Minton would have been an a fortiori case where the wife had for good consideration consented to such dismissal, but I venture to repeat that I can find nothing in the argument of counsel or in their Lordships' speeches to suggest that any such power in the court existed. I think that that possibility was never in Lord Scarman's mind when he used the language we have been discussing. The latter part of the headnote which I have read is, with the greatest respect to the reporter, a little misleading in that it selects one sentence from the speech without relating it to the context in which it was uttered."

26. Roskill L.J. goes on to discuss Dunford v. Dunford^(l) and L. v. L.⁽⁵⁾, and at p.729 occurs the following passage -

"The decision in Carpenter v. Carpenter must, with great respect to Lord Denning MR and Balcombe J, be treated as binding on this court unless it can be shown to have been disapproved in Minton v. Minton case. I have read and reread the argument and speeches in Minton v. Minton. There are references to Carpenter in the report of the argument and there is also a reference to Carpenter, in Lord Scarman's speech; there is no suggestion anywhere that Carpenter was wrongly decided. Lord Scarman gives a long historical review of the authorities; some are approved,

some are disapproved. In the course of that review Carpenter is mentioned without any indication of disapproval. That reinforces the view that Minton is a decision on (and only on)a position where there has been an agreement dismissing the application made with the consent of the wife. It seems clear from Lord Denning M R's judgment in Dunford that the earlier cases, such as Carpenter v. Carpenter, were not referred to, nor does there seem to have been any analysis of the speeches in Minton. I respectfully question whether this court should have struck out that nominal order, because it seems to me on the authorities that the court has no power to do so where the party seeking the order has not consented to the dismissal of the relevant application. So, with profound respect to Lord Denning MR and Eveleigh LJ, I take it that the relevant part of the decision in Dunford v. Dunford was per incuriam and ought not to be followed. I therefore respectfully disagree with what Balcombe J said in L. v. L. to which I have already referred."

27. Ormrod L.J. delivered a concurring judgment and expressed the view that s.23 of the Act could not be approached in isolation. In the light of the history of the relevant legislation, the introduction for the first time in the 1958 Act of the provision "On the making of a decree... or at any time thereafter" was to give the court full elasticity in the exercise of its powers to meet the justice of a case. He added "It would be very unfortunate indeed, in my judgment, if anything the court now proceeded to do should restrict that elasticity again."  In the light of the legislative history of the provisions relating to periodical payments for children he did not think that any assistance could be obtained from contrasting the phrase "exercisable from time to time" in s.23(4) of the 1973 Act with the phrase "or at any time thereafter" in s.23(1).  There is then the following passage at p.732, with which both Cumming-Bruce L.J. and Roskill L.J. expressly agreed -

"There are essentially four ways of dealing with applications for periodical payments: first, to make a substantive order secondly, to make a nominal order, the purpose of which is to enable the party obtaining it to take advantage of the variation section without undue difficulty; the third alternative is to adjourn the application generally if the court does not wish to make any order at that time; the fourth is to dismiss the application, provided the consent of the applicant is forthcoming. If it is said that that will put an increased bargaining power in the hands of an applicant where an overall settlement of financial and property issues is in contemplation, my answer is this: if the wife will not consent to her periodical payments application being dismissed, then she retains an asset in her hands, and the husband remains subject to a continuing liability which many be serious. Those two facts need to be taken into account when it comes to lump sum or property adjustment orders. It would be a ground for reducing the size of the lump sum or increasing the share of the husband's interest in the former matrimonial home or the quantum of his charge which the court proposes to give, as the case may be. That is the way in which the court, in my view, can best deal with cases where a wife is thought to be unreasonably refusing to consent to her application for periodical payments being dismissed".

28. In his concurring judgment, Cumming-Bruce L.J. expressed agreement with Roskill L.J. about the effect of Minton v. Minton⁽⁶⁾.   Referring to two short passages from Lord Scarman's speech, he said, at P.733-734 -

"For the reasons stated by Roskill L.J. those words have to be understood in their context. Their Lordships' house was considering only 'one question, which was as to what effect there was of a dismissal to which the parties had consented. There was no other question arising in the case. A scrutiny of the argument reported in the law reports makes it perfectly plain that it pas the problem of the effect of a dismissal with consent which was alone the matter under consideration in the case. The ratio given by Lord Scarman for the decision that he was explaining in relation to the principle of 'clean break was the ratio that it was in the public interest to put it this way: 'The law now encourages spouses to avoid bitterness after family breakdown and to settle their money and property problems.'  The important word there in: the context of the facts was 'encourages' the parties to settle. For the reasons concisely expressed in the speech of Lord Fraser there are the most profound public policy reasons for preserving the jurisdiction which enables a wife to apply for periodical payments after a change of circumstances prevailing at the time of the first application. The only principle of clean break to be collected from Minton v. Minton is, if the parties have decided deliberately to make a clean break by consenting to a settlement, then the opportunity for a second application has by agreement been lost. Without such consent, on the language of s.23(1) and the legislative history explained by Ormrod LJ, the applicant has the opportunity to return at any time."

29. It is clear, therefore, that the true ratio of the decision of the House of Lords in Minton v. Minton⁽⁶⁾ is of crucial importance. We are not bound by decisions of the English Court of Appeal (who in any event considered that it was bound by its earlier decision in Carpenter v. Carpenter⁽⁴⁾ but we are in reality bound by decisions of the House of Lords. If the court of Appeal in Dipper v. Dipper ⁽²⁾ is right, Minton v. Minton decides that it is only when the court makes an order on terms agreed between the parties dismissing an application for periodical payments that another application cannot be made.

30. I will say at once that I acknowledge that the facts in Minton v. Minton⁽⁶⁾ and our case are not the same and that one must be careful not to construe Lord Scarman's words more widely than he intended. But I would first remark that Counsel for the husband relied on L. v. L.⁽⁷⁾ for the proposition that a second application is not open to a wife or husband when an existing application for an order for periodical payments has been dismissed or discharged (see p.599 and p.600). Counsel made the point, again relying on  L. v.L.⁽⁷⁾ ,that the introduction of the words "or at any time thereafter" in the 1958 Act did not extend the power of the Court to make such orders save in relation to the time at which an order could be made; adding that had Parliament intended provision for a wife to be put on the same footing as provision for children, it would have been easy to say so. The difference, he suggested, with regard to children was emphasised by the wording of s.23(l) as contrasted with s.23(4), of the 1973 Act.

31. I mention L. v. L.⁽⁷⁾ for Lord Scarman expressly approved that decision at p.607. L. v. L. itself was, of course, also a case in which the order made by the court embodied an agreement reached by the parties and gave effect to it, but what Willmer L.J. had to say at p.118 on the construction of the relevant statute has its echo in Lord Scarman's speech in Minton v. Minton(6). This is what Willmer L.J. said -

"If, as I think, jurisdiction to entertain such a second application did not exist before, I cannot construe the provisions of the Act of 1958 as conferring it. All that is provided by section 1 is that any power of the court to award maintenance under section 19 of the Act of 1950 may be exercised either on pronouncing the decree of divorce, or at anytime thereafter. That is to say, the section merely enlarges the time within which an existing power of the court may be exercised. I agree with the submission of Mr. Latey that if the legislature had intended to confer a new right to make a second application for maintenance in a case where a previous application had been dismissed, it would be reasonable to expect that such a provision would have been expressed in clear and unambiguous terms."

In Minton v. Minton⁽⁶⁾ Lord Scarman said this, at p.607-608 -

"My Lords, I have come to the conclusion that L. v. L. [1962] p.101 was correctly decided.  When one turns to the Act of 1973 itself, one finds not only the jurisdictional language of the Act of 1958 repeated in section 23(1) but a strong indication as to the intention of Parliament in the significantly different language formulating the jurisdiction of the court to order maintenance for children. Subsection (4) provides:

32. With very profound respect to the members of the Court in Dipper v. Dipper⁽²⁾, I myself find Lord Scarman's reliance on the difference in wording in interpreting the relevant provisions of considerable significance and they remind us, if such a reminder were necessary, that our task is to give effect to the intention of the legislature. Lord Scarman does not limit the application of L. v. L. to consent orders and on p.608 he says in general terms "For these reasons I conclude that s.23(l) of the Act of 1973 does not empower the Court to make a second or subsequent maintenance order after an earlier application has been dismissed."  He does not add "... with the applicant's consent;" although he ,refers to a consent order a few lines below when he says "I agree ... that on its proper construction the consent order in this case is more than a dismissal.

33. Further down still on p.608 Lord Scarman says "Once an application has been dealt with upon its merits, the Court has no future jurisdiction save where there is a continuing order capable of variation or discharge under s.31 of the Act."  If I may be allowed to say so with respect, the expression "upon its merits" is a strange one to use if Lord Scarman meant to restrict his speech to cases where the applicant has consented to the order. On my reading of his speech there is no indication that his decision would have been different had the application for periodical payments been properly dismissed, for good cause, but the wife had not agreed to its dismissal.

34. The decision of the Privy Council in de Lasala v. de Lasala⁽⁸⁾ applying Minton v. Minton⁽⁶⁾ does not take the point much further because there, too, there had been a consent order. But it must be noted that in giving the judgment of the Board, Lord Diplock, in referring to Minton v. Minton said the following, at p.555 -

"By that judgment the House of Lords approved the decision in L. v. L. [1962] p.l0l and held that section 23(1) of the English Matrimonial Act 1973 does not empower the Court to make a second or subsequent maintenance order in favour of the wife after an earlier application has been dismissed."

Immediately afterwards Lord Diplock refers to the relevant "statutory language" as having been "construed as excluding the jurisdiction of the Court to make a second or subsequent order once an application for financial relief has been dismissed...".  As I have said, there is nothing conclusive in this since both cases concerned consent orders, but there is certainly no indication that Lord Diplock had understood Minton v. Minton as being confined to such cases.

35. Speaking for myself, I am unable to read Minton v. Minton⁽⁶⁾ as being limited in its application to cases where an applicant has agreed to the dismissal of his or her application for periodical payments, and feel myself effectively bound by Lord Scarman's interpretation (as I understand it) of the equivalent statute in Hong Kong (see de Lasala v. de Lasala⁽⁸⁾ at p.558).

36. In case I am wrong in my interpretation of Minton v. Minton⁽⁶⁾ I will attempt , afresh, to construe the relevant sections of our Ordinance to discover their intent. I would first say that unlike the position where there is a maintenance agreement reached between the parties without the intervention of the court, where different considerations apply (as emphasised by Lord Diplock at p.560 of de Lasala v. de Lasala⁽⁸⁾), policy considerations apart, there is nothing in the Ordinance to suggest that when the word "order" is used in the relevant sections, in any particular instance it can only mean an order made by consent. Orders are regularly made in proceedings of a civil nature either on opposing contentions, or with the consent of the parties. As Lord Diplock pointed out in de Lasala v. de Lasala at p.560 (and see Thwaite v. Thwaite⁽⁹⁾): “Financial arrangements [on divorce] that are agreed on between the parties for the purpose of receiving the-approval and being made ,the subject of a consent order by the court, once they have been made the subject of a court order no longer depend on the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order...."  They are orders which, unless set aside for good reason, bind the parties. I will also remark that in every form of procedure that I can think of (unless there is something in the governing legislation to the contrary) the power to make an order must include a power to refusen to make one. This is the ordinary result of granting or rejecting an application. There is nothing in the relevant sections of the Ordinance to suggest that the Court has no power to make an order dismissing an application for one.

37. Sections 4 and 5 of our Ordinance are in identical terms to ss.2 and 3 of the repealed U.K. Matrimonial Proceedings and Property Act 1970, now ,consolidated and re-enacted, but with only minor changes, in s.23 of the Matrimonial Causes Act 1973.

38. Section 4 of the Ordinance (which regulates financial provision for the parties to the divorce etc.) is in the following terms -

And s.5 which allows financial provision to be made for children of the family is as follows -

39. It is to be noted that the expression "or at any time thereafter" occurs in s.4(1) as it does in the equivalent s.23(1) of the U.K. Act; and it also occurs in our s.5(1)(a), whereas it is not to be found again in the equivalent U.K. provision, s.23(2)(a). [I have emphasised the words in our ss.4 and 5.] And so it seems to me that it is even clearer that in Hong Kong that the legislature intended the power given by s.5(5) of the Ordinance to make orders "from time to time" to mean something more than "at any time thereafter". Since the expression."at any time thereafter" is also used in s.5(1)(a), subsection (5) must have been added for a specific purpose; that subsection would not have been necessary if the expression "or at any time thereafter" is to be construed on the basis of the decision in Dipper v. Dipper⁽²⁾.

40. In my judgment it would be to strain the language of the governing provisions to hold that s.4(l) allows an applicant's claim to periodical payments to be renewed after a proper dismissal of her application, if she did not consent to the order. It would be as if to re-write the subsection by adding a provision on the following lines -

"No order dismissing an application for periodical payments which has the effect of precluding a subsequent application shall be made without the consent of the applicant."

41. In my opinion the words "at any time thereafter" as used in s.4(1) and s.5(1)(a) refer to the stage at which applications under these provisions can be made, and in respect of orders dismissing applications under s.4(1) (unlike the position where s.5(1)(a) or s.5(1)(b) applies) there is jurisdiction to dismiss an application once and for all, and no jurisdiction to entertain a fresh application once this has happened, and while the order stands.

42. I would add that in my view there is another indication that the expression "at any time thereafter" in ss.4 and 5 of. the Ordinance merely has the effect of enlarging the time within which the court's powers may be exercised, and this is to be found in subsection (1) of s.5 where, in paragraph (a) the words employed are "or at any time thereafter", and in paragraph (b) the expression is "either forthwith or within a reasonable period after such dismissal."

43. If I am right about the issue of jurisdiction and the Judge was entitled to dismiss the application for periodical payments without the consent of.the applicant in the exercise of his discretion, such an order will be incapable of later review in the light of any changed circumstances, and the court must be fully aware of the consequences of making it.

44. To return to the present case, although the Judge did not indicate by what he said in the written judgment which was delivered to the parties pursuant to s.60 of the District Court Ordinance that his aim had been to achieve a clean break, he did hear submissions on the principle and his "Ruling" on review shows that this is what he sought to ensure. What is very clear is that his order in respect of the Blue Pool Road flat was made on the basis that the wife's claim for periodical payments should be extinguished. It may well be that one cannot regard this case as a true application of the clean break principle because there is a child of the family (I have in mind the views of Ormrod L.J. in Moore v. Moore⁽¹⁰⁾, with which I respectfully agree) but I am not persuaded that I would be entitled, on the facts of this case, to interfere with the discretion of the Judge to decline to make a nominal order in favour of the wife, particularly as the order made in respect of the child is susceptible of subsequent variation.

45. The authorities cited to us by counsel on the issue of "conduct" were, of course, useful but they cannot be regarded as precedents, so infinite is the variety of circumstance relevant to each case. The Judge clearly had this factor in mind although he did not indicate what effect if any, the conduct of either party had on his decision. In relation to the wife's appeal, I am not satisfied that on the material before him there was anything particular about the husband's conduct that should have been taken into consideration on the issues of financial relief so as to increase the share the wife received.

46. I think that the Judge did the best that he could on the evidence presented to him and made fair order at the end of this comparatively short - and unhappy - marriage. It must be acknowledged that neither party appears to have been as open and frank about their financial affairs as they should have been.

47. For the reasons I have given, I would dismiss this appeal.

(1)    [1980] 1 All E.R. 122

(2)    [1981] Fam. 31

(3) [1976] 6 Fam. Law 110.

(4)    [1980] 1 All E.R. 827

(5)    [1980] The Times 5th February

(6)    [1979] A.C. 593

(7) [1976] P. 101

(8)    [1980] A C. 546

(9)    [1981] 3 W.L.R. 96

(10)   [1980] 10 Fam. Law 109

Cons, J.A. :

48. I agree entirely with the judgment of my Lord Fuad J.A. and I, too,would dismiss the appeal.

Kempster, J :

49. I have had the advantage of reading in advance the judgment just given by my Lord Fuad J.A. I agree with it and would dismiss the appeal for the reasons he gives. Having so concluded I would emphasise that this Court does not lightly depart from the reasoning of a strong English Court of Appeal. Insofar, however, as such reasoning appears to conflict with that of the House of Lords I, too, feel unable to follow it.

50. In Dipper v. Dipper [1981] Fam.31 at p. 43 Roskill L.J. (as he then was) said:

"Lord Scarman gives a long historical review of the authorities. - In the course of that review Carpenter is mentioned without any indication of disapproval. That reinforces the view that Minton's case is a decision on (and only on) a position where there has been an agreement dismissing the application made with the consent of the wife."

51. However, when one looks at Lord Scarman's references to Carpenter v. Carpenter in Minton v. Minton [1979] A.Co., first at p. 606, what he said was:

"However, in the unreported case of Carpenter v. Carpenter February 13, 1976, the Court of Appeal did follow L. v. L., Ormrod L.J. himself saying (albeit reluctantly)

And what, in my view, is significant about the speech of Lord Scarman is his reference at p. 604 to the two judge decision in L. v. L. [1962] P. 101 as "of critical importance". In L. v. L., where the Court was dealing with equivalent legislation to that presently obtaining in Hong Kong, it was held that the Court did not have jurisdiction to entertain. a fresh application for periodical payments after a former such application had been dismissed by,consent. But at p. 117 Willmer L.J. said quite unequivocally :

"- once an application for maintenance has been dismissed by the Court, jurisdiction does not exist to entertain a fresh application."

And on p. 118 :

"I agree with the submission of Mr. Latey that if the legislature had intended to confer a new right to make a second application for maintenance in a case where a previous application had been dismissed, it would be reasonable to expect that such a provision would have been expressed in clear and unambiguous terms."

Also Davies L.J. at p. 121 :

"Mr. Comyn, for the wife, submits that the effect of the material section) is that there is now no limit to the number of applications which may be made by a wife for permanent maintenance or a secured provision. His argument goes, and must go, as far as saying  that if a wife has made, for example, fifteen applications for maintenance, each of which has being dismissed, either on the figures or in the light of the circumstances and on the conduct of the parties, she is nevertheless entitled to make thereafter a subsequent application with a view to re-litigating the question all over again. In effect that would mean that the words: "at any time thereafter" would be almost equivalent to: "at any number of times thereafter"."

52. In view of the authorities a distinction must surely be made between the circumstances which have led judges to exercise their discretion to dismiss applications for periodical payments, such as the agreement of the parties and the desirability of a "clean-break", and the jurisdiction so to do. The members of the House of Lords in Minton were exercised by both matters and their conclusions on the one cannot, in my view, be said to vitiate their conclusions on the other.

53. There remains a small crumb of comfort for the wife. We are reminded by the judgment of Ormrod L.J. in Thwaite v. Thwaite [1981] 3 W.L.R. 96, at p. 102, that if it were subsequently to be discovered that the husband had failed to give the Court full particulars of his property and income pursuant to rule 73(2) of the Matrimonial Causes Rules, which is the equivalent of the like rule in the English Matrimonial Causes Rules 1977, that would constitute an irregularity giving the Court a discretion if the interests of justice so required to set aside the order dismissing the wife's application for periodical payments.

54. I would not wish to part with this appeal without giving expression to my surprise and dismay at the working of sections 53 and 60 of the District Court Ordinance (Cap. 336) which I encountered for the first time. On the 30th December 1983 His Hon. Judge Caird gave a reserved judgment which, we were told, was recorded on tape. Presumably the wife heard his reasons for dismissing her application. Neither counsel nor solicitors took a note of those reasons and no transcript has, conclusively at least, been forthcoming.

55. On the 23rd February 1984 pursuant to section 53 the learned judge reviewed his judgment or order; which he confirmed. At the time he explained his reasons for so doing in the "Ruling" before us. Thereafter the wife obtained leave to appeal following which the learned judge delivered to the parties the "Judgment", dated 30th of December 1983. Having regard to the terms of section 60 this document may or may not constitute an accurate record of what the judge actually said on that date since :-

What is meant by "an order for a review" in that sub-section is far from clear.

There is no assurance that the reasons which the wife may have heard given on 30th December 1983 for the dismissal of her application were reproduced in the "Judgment".  A District Judge can, in theory at least, give three contradictory legal explanations for a decision; orally, on review and in writing.

56. What led to the enactment of sections 53 and 60 I cannot imagine but they seem to me calculated to cause the litigant perplexity and expense; the judge embarrassment and this Court uncertainity as to the legal arguments which really fall for consideration.

Cons, J.A.:

57. The appeal is therefore dismissed. We make an order nisi in accordance with Order 42 rule 5A that the Respondent is to have his costs of the appeal.

Representation:

Mrs. Lily Yew (S.C. Mok & Co.) for the Appellant

Miss Jacqueline Leong (Hastings & Co.) for the Respondent